Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA063349, Darlene E. Schempp, Judge.
Stephen Borgo, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ALDRICH, J.
Christopher Cardona appeals from the judgment entered following a jury trial which resulted in his conviction of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), during the commission of which he personally used a firearm (§ 12022.5, subd. (d)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). The trial court sentenced Cardona to 11 years in prison. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. The prosecution’s case.
Daniel Sanchez and Christopher Cardona were acquaintances; their girlfriends were related. In the fall of 2009, Cardona had lent some money to Sanchez. As collateral for the loan, Sanchez had left with Cardona his G.P.S. machine. Sanchez had repaid the debt by October 1. However, by mid-October, Cardona still had not returned Sanchez’s G.P.S. system. Sanchez had asked Cardona about it on several occasions and Cardona had told Sanchez that his girlfriend, Patty, had put it away and he did not know where it was.
On October 14, 2009, a friend, Eric Guerrero, told Sanchez that he would find his G.P.S. machine outside Cardona’s apartment. Cardona lived upstairs in a building located at 5740 Sepulveda Boulevard.
At approximately 9:30 that evening, Sanchez drove his girlfriend’s Jeep Cherokee to Cardona’s apartment building to get back his G.P.S. system. As he was driving up Sepulveda, Sanchez saw Guerrero standing outside his apartment, which is approximately three buildings away from Cardona’s apartment building. Sanchez stopped and Guerrero told him that he wanted a ride to a liquor store. Sanchez agreed to take Guerrero and Guerrero got into the jeep. Sanchez then drove to Cardona’s building, parked the jeep in the driveway and, while Guerrero waited in the car, ran up the stairs to Cardona’s apartment to pick up his G.P.S. system. The machine had been set down on the landing just outside Cardona’s door.
After Sanchez picked up the machine, he examined it and noticed that “it looked like [Cardona] had punched it with a screwdriver.” Sanchez felt that there had been “no need” for that and he became upset. When he had given the G.P.S. system to Cardona, it had been in perfect condition. Sanchez turned back and knocked approximately four times “very hard” on Cardona’s apartment door and window.
Cardona opened the door. He was standing in the entry way with a gun in his hand and he told Sanchez, “ ‘Don’t ever come fucking knocking on my door like that.’ ” Cardona was holding the gun in his left hand and aiming it “straight at” Sanchez. Sanchez, referring to his G.P.S. system said, “ ‘What the fuck is this[?]’ ” As the two men engaged in a “discussion” about the damaged G.P.S. machine, Sanchez reached out and pushed down the hand in which Cardona was holding the gun. Sanchez did not reach for the gun, did not try to hit Cardona, did not try to enter Cardona’s apartment and did not do anything “threatening.”
As the two men continued to argue, Cardona’s girlfriend, Patty, walked up from behind Cardona and told Sanchez to “ ‘just leave.’ ” However, before she finished telling Sanchez to go, Cardona had raised the gun and shot Sanchez in the stomach.
After he was shot, Sanchez ran to the jeep. Guerrero, who had been waiting in the Cherokee, got out, telling Sanchez that he did not “want to be involved.” Sanchez then, because he was afraid Cardona was going to shoot him again, quickly pulled out of the driveway and drove a short distance to the apartment where he and his girlfriend lived. Once he reached the apartment, Sanchez told his girlfriend, Ana Macias, that Cardona had shot him and to call 911. He then “drop[ped] to the floor” and “pass[ed] out.”
Sanchez was transported by ambulance to UCLA Medical Center, where he underwent approximately seven hours of surgery. As a result of the shooting, his kidney was injured so that every time he urinates he feels pain. In addition, he now has a colostomy bag. Sanchez will be having additional surgery and has been disabled and unable to work since having been shot.
Prior to October 14, 2009, Sanchez had never had a problem with Cardona. The two men had not engaged in “fights or anything like that.”
Ana Macias is Sanchez’s girlfriend. The two have been dating for eight years and live together in an apartment on Kester Avenue, not far from Cardona’s apartment on Sepulveda. Macias knows Cardona because he dates her niece, Patricia. At approximately 9:30 p.m. on October 14, 2009, Sanchez received a phone call. A few minutes later, he left the apartment in Macias’s Jeep Cherokee. Less than 30 minutes later, Sanchez returned to the apartment and told Macias that Cardona had shot him. He then “collapsed and... fell to the floor.” Macias called 911.
Los Angeles Police Officer Brian Polen and his partner responded to Macias’s 911 call. After “securing the scene, ” Polen “recovered a G.P.S. system from the inside of the [apartment].” In addition, he and his partner impounded the Jeep Cherokee driven by Sanchez that night as there was blood on the driver’s seat. The officers found no weapons in the apartment or in the jeep.
b. Defense evidence.
Patricia Velazquez is Cardona’s girlfriend. In October of 2009, they had been living together for approximately seven years in an apartment located at 5740 Sepulveda Boulevard. Velazquez knew that Cardona kept a handgun in their bedroom.
Velazquez testified that there are “fights” and “shootings all the time” in and around her apartment complex. On one occasion, approximately a year and a half earlier, Velazquez had seen Sanchez involved in an altercation. He was fighting “more than one person.”
At approximately 9:50 p.m. on October 14, 2009, Velazquez heard a loud banging noise on her bedroom window. Cardona, who was also in the bedroom, left and, a short time later, Velazquez heard “arguing” between Cardona and Sanchez. There was a lot of cursing and Sanchez’s voice was “overpowering” Cardona’s. After a couple of minutes, Velazquez heard a “really loud” shot. She got up, went to the front door and saw Sanchez holding his stomach, but still arguing. However, a few seconds later, he left the complex.
Cardona went back into the bedroom, put on his jacket and left the apartment. He telephoned Velazquez early the following morning and she told him to turn himself in to the police. The next time Velazquez heard from Cardona, he was making a collect call from jail.
Cardona testified in his own defense. At the time of the shooting, Cardona had known Sanchez for between one and three years. He had met Sanchez because Sanchez was dating his girlfriend’s aunt.
Cardona stated that, on several occasions, Sanchez had borrowed money from him. The amount was usually around $20. However, instead of paying Cardona back, Sanchez would give him things such as video games. Cardona indicated that approximately two weeks before the shooting, Sanchez “came and he wanted to borrow $40.” Cardona continued, “And I think he knew I would say no to that... so he brings [the] G.P.S., and he told me... if I don’t pay you [your $40] by Friday... then you can keep the G.P.S.” Sanchez failed to pay Cardona the $40 by the designated Friday and, the following week, he approached Cardona and said, “[L]ook, I know that I told you [that] you [could] keep the G.P.S. if I didn’t pay you the $40, but this G.P.S. is worth... $200, ..., and you only gave me 40.” Sanchez told Cardona “he wanted more money than the [$]40.” Cardona, however, “just wasn’t gonna do that[] [a]nd that’s when the conflict started over that G.P.S.”
After that conversation, Cardona tried to avoid Sanchez. When he called the house, Cardona told his girlfriend to say that he was not at home. When Sanchez drove by the apartment building, Cardona would “dodge” him. But Cardona was getting “tired” of the situation and a bit concerned. He was also getting angry. When he found the G.P.S. system in his girlfriend’s drawer, he “blew up.” He took the screen from the G.P.S. and “slammed” it against a piece of metal, causing the screen to break. Believing that his girlfriend, who had been using the G.P.S., would be upset that he had broken it, Cardona put it outside the front door to his apartment, on top of a fire extinguisher. His girlfriend, who is not very tall, would not see it there. Although Cardona had put it outside his apartment, he had not intended to give the system back to Sanchez and he had not contacted Sanchez to tell him that he could have the G.P.S. back.
At approximately 9:50 p.m. on October 14, Cardona heard a loud banging on his window and the front door. Cardona was “startled” and he “grabbed [his] gun.” When he went to the door and opened it, he was “shocked” to see Sanchez. In addition, “the fact that [Sanchez] had the G.P.S. in his hand, ... was... a shocker.” Sanchez began cursing at Cardona and asking him what had happened to the G.P.S. When Cardona told Sanchez to leave, Sanchez only yelled at him more. The two men went back and forth, yelling profanities at each other. During the altercation, Cardona was holding his.38 caliber, black revolver in his right hand, at his side.
As they continued to argue, Cardona turned to see whether anyone was standing behind him. It was then that Sanchez, “react[ing] quickly, went straight for [Cardona’s] hand[, ] grabbing some of the gun and some of [Cardona’s] hand at the same time.” Sanchez and Cardona “tugg[ed] back and forth” on the gun before it discharged. Cardona claimed that his finger was not on the trigger. The gun “just went off.” He stated: “It went off. This is a revolver. No safety. It’s old.... [I]t’s not like a regular gun that [you] still gotta cock back and do everything to use it. No, it’s not like that. They go off easy.” Cardona’s ears were ringing but he could see that Sanchez, who was “holding his side as if it [was] nothing serious, ” was still cursing at him. It was at that point that Cardona’s girlfriend, Patty, came out and told Sanchez to leave.
After the shooting, Cardona was “in shock.” He felt as though he were in a “bad movie.” Cardona had never intended to kill Sanchez. If he had, he could have fired a second or third shot. Instead, Cardona just stood there until Sanchez turned around and left the apartment building.
Cardona was “scared.” He had seen the “aftermath of [Sanchez’s] fight[]” and believed that Sanchez was going to come back. So, after Sanchez left, Cardona decided that he, too, would leave the building. He emptied the remaining shells from the gun into the pocket of his jacket and placed the gun in another pocket then walked to a bus stop. After leaving his apartment, Cardona “didn’t feel the threat anymore... because if anything [Sanchez] would go back to the house and look for [Cardona].” Cardona decided to get “rid of [the gun]. [He] took off the jacket and [he] threw it away in [a] dumpster [at] one of the bus stops, put[ting] it underneath the trash.” He then took a bus to his mother’s home in North Hollywood.
2. Procedural history.
In an amended information filed on September 14, 2010, Cardona was charged in count 1 with “the crime of attempted[, ] willful, deliberate, and premeditated murder” in violation of sections 664 and 187, subdivision (a). It was further alleged as to that count that Cardona “personally and intentionally discharged a firearm, a handgun, which caused great bodily injury” to Sanchez within the meaning of section 12022.53, subdivision (d). In addition, it was alleged that Cardona “personally and intentionally discharged a firearm, a handgun, ” within the meaning of section 12022.53, subdivision (c), and that Cardona “personally used a firearm, a handgun” within the meaning of section 12022.53, subdivision (b). In count 2 it was alleged that Cardona had committed “the crime of assault with a firearm, in violation” of section 245, subdivision (a)(2) when he “willfully and unlawfully commit[ted] an assault” on Sanchez with a firearm. It was further alleged as to count 2 that, “in the commission of the... offense, ” Cardona “personally inflicted great bodily injury” upon Sanchez, “not an accomplice to the above offense, within the meaning of” section 12022.7, subdivision (a). Finally, it was alleged that Cardona “personally used a firearm, to wit, a handgun within the meaning of” sections 12022.5, 1192.7, subdivision (c) and 667.5, subdivision (c).
Jury trial began on September 14, 2010. During a break in jury selection, the prosecutor played for the trial court the contents of the 911 tape in which Macias indicates that Sanchez has been shot. The People requested that the tape be allowed into evidence as an excited utterance. Defense counsel argued that the contents of the tape were more prejudicial than probative within the meaning of Evidence Code section 352. Defense counsel stated: “We have no foundation that [this] is an excited utterance even if that would be sufficient to bring [it] in through the second level of hearsay, the victim moaning and moaning while she is pressing on his stomach at the request of the paramedics. [¶] So, I mean, what does that prove as to how he got shot? And, you know, what were the events that occurred through––during the shooting? There is no reference to it at all. It just brings up emotional feelings, [the] excitement of somebody being shot.” After further argument, the trial court indicated that the tape recording consisted of “double hearsay... in a couple of spots” and that, after hearing argument by the parties, it was “disinclined to allow it, ” but would “keep an open mind until [it had heard the] testimony.”
After all of the evidence had been presented, the trial court instructed the jury on the crimes of attempted murder, the lesser included offense of attempted voluntary manslaughter and assault with a firearm.
During the prosecution’s closing argument, the trial court received a note from Juror No. 9 indicating that she had a doctor’s appointment that could not be rescheduled and that she needed to be excused. At side bar, the court and counsel met with the juror, who indicated that, since the beginning of trial she had been unable to sleep, had been extremely nervous and had been taking Prozac to control her anxiety attacks. However, after the juror was informed that counsel’s argument was the last phase of trial before deliberations, she reluctantly indicated that she could continue. When she then indicated that she would be able to “go into the jury room... and deliberate with the other jurors, ” the trial court asked Juror No. 9 to return to her seat and to call her doctor to reschedule her appointment.
The jury began deliberating on September 16, 2010. At approximately 3:15 p.m. on September 17, the foreperson, Juror No. 12, submitted the following question to the court: “What specifically are the charges listed as 12022.7(b) and 12022.5(a) of the Penal Code? There are no descriptions listed in the jury instructions.” In response, the trial court stated: “All you need to know is disregard the Penal Code instructions. All you need to make a determination is the point five requires that you find [sic], make a finding true or not true of whether a firearm, whether there was personal use of a firearm. Disregard the Penal Code section. Some clerks don’t put them in verdicts. We do in this court, but it has no bearing on the offense and the same thing. On the other one is you find whether there was great bodily [in]jury and disregard the Penal Code section. So with that I will allow you to retire....”
Before the jury returned to the jury room to resume its deliberations, the foreperson asked the trial court: “If I had another question would I be able to ask it?” The following colloquy then occurred: “The court: Why don’t you ask it now. It’s almost 4:00 and I know you’re all anxious to go home. What is it? [¶] Juror No. 12: Two places where we’re putting true or not true on the form. [¶] The court: Yes. [¶] Juror No. 12: Do we need to include that on every charge that we’re doing it for or only on the greatest charge? [¶] The court: Whatever one. If there’s a guilty verdict you put it on the verdict that you have signed as a guilty verdict. It should be contained in that one. Okay? [¶] Juror No. 12: Okay.”
Approximately 30 minutes later, the foreperson indicated that the jury had reached verdicts. Initially, the jury found Cardona guilty of “the crime of attempted voluntary manslaughter in violation of... section[s] 664/192[, subdivision] (a)[, ] a felony, a less[e]r included offense to that charge[d] in count [1] of the amended information.” The jury further found “the allegation that... Cardona[] personally inflicted great bodily injury within the meaning of... section 12022.7[, subdivision] (a) to be true.” In addition, the jury found “the allegation that... Cardona[] personally used a firearm, a handgun, within the meaning of... section 12022.5[, subdivision] (a) to be true.”
“In the same title of court and cause, ” the jury found Cardona “guilty of the crime of assault with a firearm in violation of... section 245[, subdivision] (a)(2), a felony, as charged in count [2] of the amended information.” The jury further found “the allegation that... Cardona[] personally inflicted great bodily injury within the meaning of... section 12022.7[, subdivision] (a) to be true.” Finally, the jury found “the allegation that... Cardona[] personally used a firearm, a handgun, within the meaning of... section 12022.5[, subdivision] (a) to be true.”
When the trial court asked the foreperson if the jury had found Cardona not guilty of attempted murder before finding him guilty of the lesser included offense of attempted voluntary manslaughter, the foreperson indicated that the jury had hung, with nine jurors voting not guilty and three jurors voting guilty, on the attempted murder charge. The jury had, however, been unanimous with regard to the finding of guilt on the lesser included charge of attempted voluntary manslaughter. After a discussion with counsel, the trial court determined that, because it had not found Cardona not guilty of the greater offense of attempted murder before finding him guilty of attempted voluntary manslaughter, the jury had hung as to count 1. The trial court accordingly declared the jury “hopelessly deadlocked on count [1] and a mistrial as” to that count. It then indicated that the verdict on count 2, however, was valid and would be “recorded and accepted.”
Sentencing proceedings were held on September 30, 2010. The prosecutor indicated that his office did not intend to again prosecute Cardona on the attempted murder alleged in count 1 and the trial court accordingly dismissed that charge and proceeded to sentence Cardona on count 2, the assault with a firearm. After hearing comments from counsel and Cardona, himself, the trial court stated: “Mr. Cardona, I came out here with the intention of giving you the [maximum sentence of] 16 years. I guess I’ve been persuaded to give you a little bit of a break, but not much, because you do appear to the court to be remorseful, and I will consider that as a mitigating factor.” The trial court then sentenced Cardona to the upper term of four years in prison for his conviction of assault with a firearm. For his personal infliction of great bodily injury during the offense, the trial court imposed an enhancement of three years. For his personal use of a firearm during the offense, the trial court imposed an enhancement of four years, for a total term of 11 years in state prison.
Cardona was awarded presentence custody credit for 351 days actually served and 52 days of good time/work time, or a total of 403 days. He was ordered to pay a $1,000 restitution fine (§ 1202.4, subd. (b)), a suspended $1,000 parole revocation restitution fine (§ 1202.45), a $30 court security fee (§ 1465.8, subd. (a)(1)), a $30 criminal conviction assessment (Gov. Code, § 70373), a $20 DNA assessment fine (§ 296) and restitution to the victim’s compensation fund in the amount of $31,917.19 (§ 1202.4, subd. (f)).
Cardona filed a timely notice of appeal on September 30, 2010.
This court appointed counsel to represent Cardona on appeal on December 21, 2010.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed January 18, 2011, the clerk of this court advised Cardona to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., KITCHING, J.